In three cases since 2010, the U.S. Supreme Court has seemingly strengthened the chronically anemic right to effective assistance of counsel. Padilla v. Kentucky, the first in the trilogy, indicated that defense lawyers must in some circumstances provide accurate information to their clients regarding the deportation consequences of a conviction. The Court then followed up Padilla with decisions in Lafler v. Cooper and Missouri v. Frye that reaffirmed and clarified the right to effective assistance in plea bargaining. (See my post here.)

With three decisions this week, the U.S. Supreme Court has signficantly strengthened defendants’ right to effective assistance of counsel. In my next post, I’ll cover the two decisions that have received the most press coverage, Lafler v. Cooper and Missouri v. Frye. Here, I’ll comment on Martinez v. Ryan, a decision that seems much narrower than the other two, but that may ultimately prove no less significant. At issue is the right to counsel in collateral proceedings — an issue that has been hotly contested at the Court for many years.

Here’s what happened. An Arizona jury convicted Martinez of sexual conduct with a minor. After trial, the state appointed a new lawyer to handle Martinez’s post-conviction challenges. This lawyer pursued a direct appeal, which proved unsuccessful, and also initiated a state collateral proceeding by filing a “Notice of Post-Conviction Relief.” Later, however, the lawyer filed another statement asserting that she could find no colorable claims for collateral relief. Martinez then had 45 days to file a pro se petition in order to keep the collateral proceeding alive. He did not do so, allegedly because his lawyer failed to advise him of what was happening in his case. In any event, the state trial court then dismissed the collateral proceeding.

Yesterday, in Martel v. Clair (No. 10-1265), the U.S. Supreme Court affirmed that district judges in habeas cases have broad discretion in responding to defendants’ requests for new counsel. In so doing, the Court rejected an argument that a capital defendant may only replace his appointed lawyer if the defendant has suffered an actual or constructive denial of counsel. Rather, the Court held, capital defendants are subject to the same “interests of justice” standard that governs requests for new counsel by noncapital defendants. The Court further emphasized that the inquiry is highly context-specific and must be reviewed deferentially by appellate courts.

What makes criminal litigation different than civil? This is a question I ask at the start of each year in my Criminal Law course. The students and I consider several possible distinguishing characteristics, but we ultimately have to conclude that there is no one factor that absolutely and without exception separates criminal from civil. There are many sorts of proceedings that look in some important ways like criminal litigation, but in other important ways like civil. To the extent that such proceedings are formally labeled civil or criminal seems less a function of the logical application of some clear rule than a matter of convention or convenience.

Although a “quasi-criminal” proceeding may be categorized as civil for some purposes, there will be a natural tendency for litigants to expect and demand some of the procedural protections that are normally associated with criminal litigation.

While awaiting trial on criminal charges in federal court, Michael Campbell wrote the following in a letter to the judge:

Your honor I am asking that John Taylor [Campbell’s court-appointed lawyer] be removed from my case. I am requesting that you appoint another lawyer to complete the process. If not I would like to proceed pro se.

As my Criminal Procedure students have heard me discuss at length, defendants do indeed have a Sixth Amendment right to represent themselves. Yet, Campbell’s request was not satisfied: Taylor continued to serve as his lawyer through the time of his trial and conviction. Campbell then raised the issue on appeal, but the Seventh Circuit nonetheless affirmed his conviction earlier this week (United States v. Campbell (No. 10-3002)). The court held, in effect, that Campbell should have renewed his request to go it alone, rather than sitting quietly throughout the trial as his lawyer continued to represent him. (more…)

In Burgett v. Texas, 389 U.S. 109 (1967), the Supreme Court held that a prior conviction cannot be used to enhance a defendant’s sentence under a recidivism statute if the prior conviction was obtained in violation of the defendant’s constitutional right to counsel. Native Americans, however, must deal with an apparent loophole in the Burgett rule: the Sixth Amendment right to counsel applies to proceedings in federal and state courts, but not tribal courts. If an uncounseled prior conviction in tribal court does not violate the Constitution, it may arguably fall outside the Burgett prohibition and be used against the defendant in a later case.

By some apparent coincidence, the Eighth and Tenth Circuits last month both addressed the use of uncounseled tribal-court convictions under 18 U.S.C. § 117(a), which makes domestic assault by a habitual offender a federal crime. Both courts approved use of such convictions to satisfy the criminal-history element of the offense.

The Eighth Circuit decision, which actually drew a dissent, seems the more carefully reasoned.

For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings. The first case, Martinez v. Ryan (see my post here), concerns the constitutional right to counsel in a collateral proceeding in state court. The new case, Martel v. Clair (No. 10-1265), deals with the statutory right to counsel in a federal habeas case.

Here’s what happened. Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition. After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender. It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim. The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition. On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender. The Supreme Court granted the state’s petition for certiorari yesterday.

At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.

Although the Supreme Court has long recognized that defendants have a right to counsel at the first level of direct appeal, the Court has thus far declined to extend this right to collateral post-conviction proceedings, such as habeas corpus. Earlier this week, however, the Court agreed to hear a case that will test how firm the distinction really is. Martinez v. Ryan (No. 10-1001) involves a state-court defendant’s attempt to litigate a claim in collateral proceedings that he was prohibited from raising on direct appeal. If he has no right to counsel in his collateral proceeding, then he has no right to counsel at all as to this issue.

In working through a backlog of old issues of The Champion, I came across a provocative article by Ann Roan, “Building the Persuasive Case for Innocence” (March 2011 issue, p. 18). She argues against the tendency for defense lawyers to rest on “negative case analysis” (that is, focusing on what the prosecution cannot prove). She writes:

The negative case analysis leads to weak and abstract language instead of urgent, immediate and authentic ways of describing people and events. Most alarming, however, is the fact that juries (rightly) perceive the negative case analysis as nothing but a bunch of lawyer tricks and technicalities.

When a defense lawyer says, “The state cannot prove each and every element beyond a reasonable doubt,” juries hear, “Ladies and gentlemen, my client is guilty. Guilty, guilty, guilty. But you’re going to let him go anyway. Why? Because of technical legal mumbo-jumbo. That’s why.” No wonder lawyers lose cases when they prepare them using a negative case analysis. (19)

This passage resonates with my own sensibilities (and my own experience a few years back as a juror). Jurors are not likely to engage in a rigorous, element-by-element analysis of the law and evidence, especially if they have a strong, negative emotional response to what the defendant is alleged to have done. For this reason, I’ve often wondered if the defendant’s right not to testify isn’t really a trap — a too-convenient excuse for falling back on the negative case strategy, rather than building a case for innocence.

"I have gathered from all you have said, dearest brethren, that although they punish you for your faults, yet the pains you suffer do not please you, and that you go to them with ill will and against your inclination. I realize, moreover, that perhaps it was the lack of courage of one fellow on the rack, the want of money of another, the want of friends of a third, and finally the biased sentence of the judge that have been the cause of your not receiving the justice to which you were entitled. Now all this prompts and even compels me to perform on your behalf the task for which I was sent into the world, and for which I became a knight-errant, and to which end I vowed to succor the needy and help those who are oppressed by the powerful."